Judicial babysitting: Asylum crisis lays bare government’s policy failures

South Africa’s migration policy has once again been thrown into turmoil, exposing the state’s inability to manage asylum procedures with coherence and foresight.

The inter-ministerial committee on migration, led by Justice and Constitutional Development Minister Mmamoloko Kubayi, met to address a July Constitutional Court ruling that invalidated parts of the Refugees Act.

The ruling eliminated provisions that allowed the deportation of asylum seekers who entered without a transit visa, a requirement criticised as bureaucratic and exclusionary.

But two judges from the same court gave contradictory rulings: one said undocumented applicants in repatriation detention should remain there until officials visit the centre to process their asylum claims.

Another judge said access to the asylum process requires detained asylum seekers to be released immediately, rather than processed from inside a detention facility.

The full bench must resolve this. Kubayi and her team’s decision to seek a supervisory order to oversee implementation is a remarkable admission that the executive cannot manage its own compliance without judicial babysitting.

The government’s overreliance on judicial supervision illustrates a deeper malaise in our leadership.

Migration has become a policy arena where government repeatedly abdicates responsibility, leaving judges to dictate the terms of enforcement.

This has become a pattern of our political system. We have witnessed legislation drafted without adequate foresight, challenged in court, struck down, and then patched together under judicial supervision.

While judicial vigilance is essential, the executive’s dependence on it betrays a lack of administrative competence.

While the judiciary is constitutionally empowered to safeguard rights, its growing role in shaping administrative practice raises questions about overreach.

Courts are not designed to manage refugee reception centres or dictate operational procedures. Their intervention, however necessary, reflects the vacuum created by executive paralysis.

The first blunder is the government’s failure to anticipate the constitutional vulnerability of the transit visa requirement, despite years of warnings from civil society.

Second, once the ruling was handed down, officials offered no clear plan to absorb the influx of asylum seekers who will now bypass the visa filter.

Refugee reception centres already buckle under massive backlogs and removing this gatekeeping mechanism will only intensify the strain.

Migration is a combustible issue in South Africa, fuelling community tensions and opposition attacks. By appearing indecisive, government risks reinforcing perceptions of incompetence.

The judiciary’s assertiveness, meanwhile, emboldens critics who argue that judges are encroaching on executive prerogatives.

The supervisory order, if granted, will symbolise not only constitutional vigilance, but also executive failure.

The idea of letting everybody into the country is governance weakness itself. Without effective screening and resourcing, the asylum system may be overwhelmed by economic migrants seeking to exploit the loosened entry rules.

The challenge now is not merely to comply with the July ruling, or to have a full court bench clarify it, but to restore credibility in migration management, the government’s Achilles’ heel since 1994.

That requires more than court orders, it demands political will, legislative clarity and administrative capacity to address immigration once and for all.